Budget Build Pty Ltd as trustee for Shabana Family Trust (Migration)

This matter concerned an appeal by Budget Build Pty Ltd as trustee for Shabana Family Trust against a decision to refuse its employer nomination. The dispute centred on whether the applicant met the requirements for approval of a nomination under the Direct Entry nomination stream as set out in regulation 5.19(4) of the Migration Regulations 1994. The Tribunal was required to determine if the applicant had satisfied all the necessary criteria for the nomination to be approved.

The primary legal issue before the Tribunal was whether the applicant had demonstrated a need for a paid employee to work in the nominated position under its direct control, as required by subparagraph 5.19(4)(a)(ii). The Tribunal noted that while the application identified a nominee for the position of 'Management Consultant' and set out the proposed salary, the delegate had not been satisfied due to insufficient information explaining the need for the position. Specifically, the delegate had noted the absence of verifiable financial information, the lack of advertising for the position, and no evidence demonstrating a need for business diversification or expansion.

The Tribunal reasoned that, according to the wording of subparagraph 5.19(4)(a)(ii), the provision is not directed at a qualitative assessment of the nominator's need for a paid employee. Instead, it focuses on whether the application itself identifies such a need. However, the Tribunal found that the applicant had not provided sufficient material to enable it to establish the relevant facts, particularly regarding verifiable financial information. The Tribunal affirmed the decision under review to refuse the nomination, finding that the applicant had not met the requirements of regulation 5.19(4).